Quest for copy of Schenectady city code proves elusive

Arthur Eiss is a relative newcomer to Schenectady, but he says he’s looking forward to making the Electric City his home for a while and wants to be a good citizen of his new community.
That’s why, after he learned his barking dog was violating city ordinances and he was perturbed by rowdy neighbors outside the Fifth Avenue house he bought last year, he decided to get himself up-to-speed on city laws.

“I thought I’d like to educate myself,” he said.
He’s been amazed by how difficult that has turned out to be.
Eiss dropped by City Hall a couple of weeks ago and asked for a copy of the city code, a two-part document that includes the City Charter and the administrative code, a full set of local ordinances governing everything from building inspections to waste disposal.
Because it’s voluminous — the paper version fills two thick, black, 3-ring binders, says Corporation Counsel L. John Van Norden ­— Eiss asked for it in electronic format, probably a disk.
At the standard copying fee of 25 cents per page, the full paper version would have been costly, not to mention cumbersome. And since he wanted a comprehensive copy for review and general reference, Eiss said he didn’t want to ask only for individual sections that he knew would be of interest.
“I’d like to know about the codes I don’t know about and the codes I don’t even know that I don’t know about,” he explained when we talked at his home on Wednesday.
At the request of staffers at City Hall, Eiss filled out a form, which he later learned was a formal request for records access under New York’s Freedom of Information Law. A week later, he received a response saying his request was denied.
The reason: “Materials requested are protected by copyright and release of materials is through exclusive license only.”
That was a new one on me. I’ve filed my share of FOIL requests over the years and had a few of them denied, at least initially. The idea that public records, especially records documenting local laws, could be copyrighted and, thus, unavailable to a city resident just seemed unbelievable.
There must have been some mistake, right?
No, Van Norden told me, that’s the city’s position — though he stressed that it’s a temporary situation.
Schenectady’s code hasn’t been reviewed, updated and “recodified” in more than 20 years, and the format leaves a lot to be desired in user-friendliness, Van Norden said. That’s why the city has contracted with a national company called General Code for about $20,000 to create a comprehensive, searchable electronic version of the code that eventually will be posted on the Web and available to all.
City employees have access to the current electronic version through General Code, but “that is strictly proprietary and copyrighted,” Van Norden said. “They own the electronic code and we use it under an electronic licensing agreement.”
Even if a copy of the code were provided to Eiss, he said, it would quickly be outdated. “I have council members asking me for new and interesting legislation all the time,” he noted.
After hearing Van Norden’s explanation, I don’t think the city’s denial of Eiss’s request is as obstructionist and anti-democratic as it initially sounded. But I do believe it’s wrong, and I suspect that, with a more rational and careful review, the city will reverse itself when Eiss appeals ­­— as he says he plans to.
New York’s FOI Law defines a public record as “any information kept, held, filed, produced or reproduced by, with or for an agency … in any physical form whatsoever,” notes Robert Freeman, executive director of New York’s Committee on Open Government.”
“They are city of Schenectady records,” Freeman said, when I described what Eiss was seeking. “A contract cannot reduce or diminish rights of access conferred upon the public by a statute such as the Freedom of Information Law.”
Even if General Code maintains the records on Schenectady’s behalf, “the content determines what’s public,” Freeman said. “The records are being kept for the city,” and “I believe that the city has the responsibility to ensure that the record is made available in some electronic medium.”
A conversation with Colleen White, managing editor of General Code, also leads me to be optimistic that there are ways for Eiss to gain access to the code without resorting to a lawsuit or anything approaching that level of confrontation.
Two options seem unreasonably expensive for an individual: He could purchase a copy of the code in a paper binder from General Code for $656 or on a CD-ROM disk bundled with General Code’s software for $200.
But Eiss also indicated he might find it sufficient to review a paper copy of the code, as needed, at a library. White said copies of the code, with updates early this year, are on file at the Schenectady Public Library, Schenectady County Supreme Court Library, the Schenectady County Community College Library and several other locations.
Another option, if the city is agreeable and has the technical know-how on staff, could be to export the electronic data from one of the General Code disks to another disk using a different electronic format, such as Microsoft Word.
And, finally, if he’s willing to wait, Eiss should have access to the information on line for free by sometime next year.
“It will be on the city’s Web site,” said White. “It’s just a matter of time.”